Today, new rules became effective that change the cover page of many forms filed with the Securities and Exchange Commission (the “SEC”). The SEC has adopted technical amendments to conform certain rules and forms to self-executing provisions of the Jumpstart Our Business Startups Act (the “JOBS Act”). The SEC’s adopting release is available here. Although the rule changes were driven by the need to accommodate Emerging Growth Companies (“EGCs”) in the SEC’s reporting regime, the amendments affect the Securities Act registration forms and Exchange Act reporting forms used by all companies, even those that are not EGCs. The technical amendments apply to Forms S-1, S-3, S-4, S-8, S-11, F-1, F-3, F-4, 10, 8-K, 10-Q, 10-K, 20-F, 40-F and C.

The SEC’s technical amendments are intended to provide a uniform method for an EGC to notify the SEC and the public that it is an EGC and whether it has opted out of the extended transition period for complying with new accounting standards. The amendments modify the cover pages of each of the forms to include two additional checkboxes. The first checkbox allows the company to indicate whether it is an EGC. The second checkbox allows the company to make an irrevocable election not to use the extended transition period for complying with new or revised accounting standards.

The amendments are made necessary by the JOBS Act, which, in relevant part, exempts EGCs from a number of disclosure and regulatory requirements. An EGC is permitted to provide two years, rather than three years, of audited financial statements in its registration statement for an initial public offering of common equity securities (“IPO Registration Statement”). In subsequent registration statements or periodic reports, an EGC need not present selected financial data under Item 301 or management discussion and analysis under Item 303 of Regulation S-K for any period prior to the earliest audited period presented in the IPO Registration Statement. An EGC is exempt from the required advisory shareholder votes on compensation of named executive officers (“say-on-pay”), the frequency of say-on-pay votes, and golden parachutes, and is not required to provide an auditor attestation on management’s assessment of its internal control over financial reporting. An EGC may comply with the requirements of Item 402 of Regulation S-K by providing only the information required of a smaller reporting company. Furthermore, an EGC may defer compliance with any new or revised accounting standards until such standards are applicable to companies that are not subject to SEC reporting.

The Division of Corporation Finance had previously issued guidance (available here) indicating that a company should disclose that it is an EGC on the cover page of its prospectus, but the technical amendments standardize the practice and make it applicable to a wide range of forms. Because the amendments apply to the cover page of forms used by all companies with SEC registration or reporting obligations, however, even companies that do not qualify as EGCs must be aware of the changes.

It is not necessarily clear based on the adopting release how the additional items will be formatted, but a mock-up of the revised cover page of Form 10-Q is reproduced below based on proposed text in the release, with changes underlined, pending the SEC’s update to its official forms.

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

____________________________________

FORM 10-Q

____________________________________

* * * * *

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, smaller reporting company, or an emerging growth company. See definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.

Large accelerated filer

¨

Accelerated filer

¨

Non-accelerated filer

¨ (Do not check if
a smaller reporting company)

Smaller reporting company

¨

Emerging growth company

¨

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ¨